JUDGMENT
P.K. Tripathy, J.
1. Heard. For the reasons stated below, leave to appeal against order of acquittal is refused.
2. Opposite party members faced trial in S.T. Case No. 28/309 of 2002 of the Court of Additional Sessions Judge, Khurda on the charge of murder punishable under Section 302/34, IPC.
3. Fact situation available from the Lower Court’s record is that in the night of 19.5.1999, Purna Chandra Muduli (hereinafter referred to as the “deceased”) went outside together with accused-opposite party No. 1 on a bicycle to witness Opera. In the same night one Biranchi Narayan Harichandan (P.W. 4) came and informed in the house of the deceased that at about 10 p.m. he saw the deceased on N.H. No. 5 lying with head injuries. Accused-opposite party No. 1 in semi-conscious stage and the deceased in unconscious stage with injuries were brought to the hospital at about 10.30 p.m. on 19.5.1999. After giving preliminary treatment, because of the serious condition of both the persons, the doctor (D.W. 2) advised for shifting them to S.C.B. Medical College & Hospital, Cuttack. In the referral hospital the deceased succumbed on the next day morning (20.5.1999). An U.D. Case was registered by Mangalabag Police Station at Cuttack and on the basis of the requisition from that police station, post-mortem examination was conducted on the dead body of the deceased. Before sending the dead body for post-mortem examination, inquest was held over the dead body at S.C.B. Medical College & Hospital, Cuttack and at that time Pratap Kumar Muduli, brother of the deceased made statement that while proceeding together with the above named accused-opposite party No. 1, the deceased suffered injuries by fall due to dashing of a truck. That was also the statement of one Taraprasad Mohapatra, a friend of the deceased. When the matter stood at that, on 13.6.1999 petitioner, who is the father of the deceased, lodged FIR (Ext. B) stating therein that after death of his son he had lost mental balance of therefore made prevaricating statements before others relating to reason behind the death of his son, but as he heard from different persons that death of the deceased may not be due to such accident, the mystery be solved by proper investigation. On the basis of that FIR, Tangi P.S. Case No. 102 of 1999 was registered under Section 279/304-A, IPC. On completion of the investigation, Final Form (Final Report) was submitted on 18.9.1999 stating that deceased suffered the death due to dashing of unknown vehicle, regarding which no clue is available. Informant was noticed about the Final Form. He filed the protest petition in the shape of complaint, which was registered as I.C.C. No. 104 of 2001. In that complaint the present opposite party members were arrayed as accused persons. After the enquiry under Section 202, Cr.P.C, on the ground of existence of a prima facie case, Learned S.D.J.M., Khurda committed the case to the Court of Sessions for the offence punishable under Section 302/34, IPC. In’that complaint it was alleged that at about 10 p.m. on 19.5.1999, on the request of accused No. 1, deceased accompanied him and both of them proceeded on a bicycle. Though the case was given the colour of injury due to accident, but the complainant made enquiry and in that process ascertained from several witnesses including Budhia Rout (P.W. 2), Raj Kishore Jena (P.W. 3) and Biranchi Narayan Harichandan (P.W. 4) that deceased was done to death by concerned action of the three accused persons who are the opposite party members in this case. Complainant alleged that investigation was not properly conducted.
4. In course of the trial, prosecution relied on the evidence of six witnesses and the post-mortem report marked Ext. 1. Amongst the prosecution witnesses, P.W. 1 is the sister and P.W. 5 is the father of the deceased. They are admittedly post-occurrence witnesses. P.Ws. 23 and 4 have been described as eye-witnesses to the occurrence and P.W. 6 is the doctor who conducted autopsy and proved the post-mortem report.
5. Accused persons took the plea of complete denial to the charges and stated that deceased died due to vehicular accident. Accused/opposite party No. 1 also took the defence plea that while he and the deceased were together moving on a bicycle, they met with accident and were taken to Tangi Hospital and then to S.C.B. Medical College & Hospital, Cuttack. In support of such plea, defence examined four witnesses and relied on series of documents marked Exts. A to H. Amongst the witnesses D.W. 1 is the Investigating Officer, D.W. 2 is the doctor of Tangi Hospital who granted initial treatment to the deceased and accused No. 1, D.W. 3 is the A.S.I, of Police of Mangalabag P.S. who held inquest and requisitioned for post-mortem examination of the deceased on the basis of U.D. Case registered on the death of the deceased, and D.W. 4 is the Record Keeper of S.C.B. Medical College & Hospital, Cuttack. He produced documents from the said hospital. Ext. A is the Inquest Report, Ext. B is the FIR lodged by P.W. 5, Exts. C & D are the two Injury Certificates of the deceased and accused No. 1 respectively, and Exts. F, G & H are the entries in the Casualty Register of S.C.B. Medical College & Hospital, Cuttack and the bed-head ticket of the deceased. Ext. E is the authorization granted to D.W. 4 to produce the records.
6. P.W. 1 stated in her evidence that after receiving information from P.W. 4 that her brother was lying in an injured condition, she along with P.W. 5 went to the spot and shifted the deceased to Tangi Hospital and then to S.C.B. Medical College & Hospital at Cuttack. Two months after when she went to the house of accused No. 1 to ascertain as to why the latter did not sustain any injury in that accident, then the father of the said accused threatened her that not only the deceased was murdered but also the entire family members of the deceased would be killed. In the cross-examination she has admitted that she had not gone to Tangi Hospital or to Cuttack and that she did not enquire about accused No. 1 when she noticed her brother lying injured on N.H. 5. P.W. 2, in his evidence, stated that at about 10 p.m. in the occurrence night he along with P.W. 3 got down at Chandrasekharpur Chhak (square) to take tea. They found a gathering there and a tussle between accused No. 1 and the deceased. He intervened without any result. After taking tea when they were returning, they saw deceased lying with bleeding injuries and some persons ran away and that they could not identify them (persons running away). At that time deceased whispered that, “He was assaulted due to political rivality”. At that time P.W. 4 arrived at the spot and P.Ws. 2 and 3 requested him to intimate the matter in the house of the deceased. In the cross-examination this witness stated that, “Purna did not disclose the names of the assailants”. P.W. 3 stated in his evidence that while coming together with P.W. 2 when they stopped for taking tea at Chandrasekharpur Chhak, he found the accused persons aousing the deceased in filthy language and those persons together with the accused left that place on bicycles. After taking tea when they were coming at Baramandi Chhak, they saw the deceased lying injured on the left side of the road and was asking for water. P.W. 4 also arrived at the spot. P.W. 2 asked P.W. 4 to administer water to the deceased and to inform in his house. P.W. 3 further stated that he did not see how the deceased sustained the injury. In the cross-examination he has stated that he and P.W. 2 were coming on a single bicycle (by double riding). He also stated that deceased was in senses when they saw him lying on the road. P.W. 4 stated in his evidence that while going from Badapari to Chandaneswar at about 10 p.m. he found deceased lying with bleeding injury on N.H. 5 at Baramandi Chhak. He saw three persons running away. He could not recognize them. P.Ws. 2 and 3 were present there. He informed the incident to the sister of the deceased. In the cross-examination he admitted that in his statement recorded in the Court in course of the enquiry under Section 202, Cr.P.C. he stated that he did not know as to how the injured (deceased) sustained injuries. P.W. 5 stated in his evidence that after getting information from his daughter about the deceased lying on the road in injured condition, they proceeded to the spot, brought the deceased to Tangi Hospital and then to S.C.B. Medical College & Hospital, Cuttack. After the post-mortem examination, he brought the dead body for funeral. He got the information from P.W. 4 about the presence of P.Ws. 2 and 3 at the spot and thereafter from P.Ws. 2 and 3 that the accused persons assaulted his son by “Lathi” and that was seen by them (P.Ws. 2 and 3) by focusing torch light, and that the accused persons threatened P.Ws. 2 and 3 with direction not to disclose the incident. In the cross-examination he stated that Pratap reached the Hospital at Cuttack in the morning of 20.5.1999 and signed in the Inquest Report, Ext. A. He was also confronted with the contradictions in the FIR and the oral evidence in the trial Court relating to complicity of the accused persons with the alleged crime. He has denied his knowledge about admission of accused No. 1 in Tangi Hospital or shifting of him to the S.C.B. Medical College & Hospital, Cuttack. P.W. 6 in support oi the post-mortem report Ext. 1, stated that, “cause of death was due to extensive scalp, scull-bone and brain injuries”. He opined that injury Nos. 2 and 3 are possible by Lathi but not injury No. 1, which was on the dorsum of base of right middle finger.
7. When the prosecution evidence stood thus, evidence of D.W. 2 and Exts. C & D prove that both deceased and injured were brought to Tangi Hospital and both of them were referred to S.C.B. Medical College & Hospital, Cuttack. Evidence of D.W. 3 proved that at the time of inquest (Ext. A), brother of the deceased was a witness and he opined regarding injuries due to accident. Exts. G and H proved that accused No. 1 and the deceased were admitted as indoor patient in S.C.B. Medical College & Hospital, Cuttack.
8. On assessment of such evidence adduced by the parties, Learned Addl. Sessions Judge found that though the prosecution has proved death of the de-ceased due to ante-mortem injuries, but there is no evidence on record to indicate that he sustained such injuries because of any assault made on him by any of the accused persons. In that respect he found evidence of P.W. 2 not sufficient to prove it to be a dying declaration to fasten the accusation against any of the accused persons. He found evidence adduced from the side of the defence to be credible and more particularly the inquest report and the injury certificates granted by the doctor and admission of the accused and the deceased at Cuttack Hospital to create sufficient doubt as against the accusation made by the prosecution against the accused persons. Accordingly he found that the prosecution failed to prove the charge under Section 302/34, IPC beyond all reasonable doubts. He thus granted benefit of doubt and acquitted the accused persons.
9. Assailing the aforesaid order of acquittal, learned Counsel for the petitioner submits that in view of the provision in Sections 31, 32 and 33 of the Indian Evidence Act, the dying declaration of the deceased proved by P.W. 2 was not properly considered by the Trial Court. We find no substance in that argument inasmuch as there is no dying declaration so as to pin up any of the accused with the alleged crime.
10. He further argues that it is the responsibility of the Trial Court to bring all relevant evidence on record by issuing summons to the relevant witnesses and directing production of relevant documents. Indeed it is the duty of a Trial Court not to participate mechanically or to remain mute spectator in course of a trial but to participate actively with a view to evaluate the evidence and adjudicate the dispute in a proper and sensible manner. At the same time, it is not the duty of a trial Court to behave like a prosecutor and to search for evidence to procure the same. In this case, evidence, which was tendered by the prosecution, was deficient to prove or sustain the alleged charge. To the extent the evidence which was relevant to proye innocence of the accused, was brought from official records of the hospital and relevant witnesses were examined by the defence. Therefore, we do not find any lacuna on the part of the Trial Court. Accordingly the aforesaid argument of the petitioner is also of no merit.
11. learned Counsel for the petitioner argues that P.Ws. 2 and 3 did not support the prosecution in full and, therefore, Trial Court permitted the prosecution to put leading questions and confront the earlier statement in accordance with the provision in Sections 154 and 155 of the Indian Evidence Act and yet did not direct for their prosecution for the offence under Section 191, IPC. In that respect it may be noted that nowhere the Trial Court has recorded that from the narration of events by the said two witnesses he gathered the impression that they had given false evidence. The sequences of events, which have been projected, also do not go to indicate that those two witnesses gave false evidence in Court. Under such circumstance, this contention of the petitioner bears no merit.
12. learned Counsel for the petitioner further argues that provision in Sections 154 and 295, Cr.P.C. were not complied with. We find no factual support in support of such argument inasmuch as the FIR, after being presented, was registered and investigation was taken up by the. police of Tangi P.S. Similarly, in course of the trial, evidence was admitted as and when the same was proved, because neither party admitted to the documentary evidence adduced from the side of the opponent. Be that as it may, a procedural lacuna in respect of Section 294, Cr.P.C, if any, is not sufficient enough to up set an order of acquittal. Accordingly the said contention is also rejected.
13. In course of the submission, learned Counsel for the petitioner refers to and relies on the case of Harekrishna Das v. State 74 (1992) CLT 624; Kali Nayak @ Mukhi and Braja Naik and Anr. v. State of Orissa 80 (1995) CLT 786; Madan Mohan v. State of Orissa 81 (1996) CLT 314; Banthia Dehury and two Ors. v. State of Orissa 88 (1999) CLT 26; and P.V. Radhakrishna v. State of Karnataka AIR 2003 SC 2859, and states that the ratio propounded therein were not properly followed at the time of trial of the case, appreciation of evidence and delivery of judgment. After going through the said citations, we do not find any mistake or illegality having been committed by the Trial Court in respect of appreciation of evidence or recording the finding to grant benefit of doubt to the accused persons.
14. No other contention is raised while challenging to the order of acquittal and seeking the leave to appeal. On careful consideration of all the facts and circumstances and the contention raised, we do not find any merit in this application so as to grant leave to appeal, and accordingly the same is rejected.
The CRLLP is accordingly dismissed.
A.K. Samantray, J.
15. I agree.